Shri Raj Kumar, Meerut V. ITO, Bulandshahr

ITA 4060/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3519 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 29-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 19-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST IMPUGNED DATED PASSED
• Keywords: Additional evidence; Non compliance
• Section: 142(1); 234B; 147; 148; 144

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.:- 4060/DEL /2015 ASSESSMENT YEAR: 2009-10 RAJ KUMAR C/O M/S. MALIK & CO. 305, THAPAR NAGAR, MEERUT PAN CSZPK9455Q VS. ITO, WARD-3, BULANDSHAHR (APPELLANT) (RESPONDENT) O R D E R PER AMIT SHUKLA, J.M. THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 10.3.2015, PASSED BY CIT(APPEA LS) GHAZIABAD FOR THE QUANTUM OF ASSESSMENT PASSED U/S 144/148 FOR TH E ASSESSMENT YEAR 2009-10. IN THE GROUNDS OF APPEAL THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. THAT NOTICE U/S 148 ISSUED ON 10.2.2012 REQUIRING T HE ASSESSEE TO FILE INCOME TAX RETURN WITHIN 15 DAYS W AS NOT SERVED ON THE ASSESSEE. EVEN OTHERWISE NOT BEING A VALID AND LEGAL NOTICE NON COMPLIANCE DID NOT CONSTITUTE A VALID ASSESSEE BY: SHRI SANJAY MALIK, ADVOCATE DEPARTMENT BY : SHRI ATIQ AHMOD, SR. DR DATE OF HEARING 01/11/2017 DATE OF PRONOUNCEMENT 07/11/2017 ITA NO. 4060/DEL/2015 RAJ KUMAR VS. ITO 2 AND LEGAL CAUSE FOR MAKING AN ASSESSMENT U/S 144 OF THE I.T. ACT. 2. THE SUBSEQUENT NOTICES U/S 143(2) & 142(1) WERE ALSO NOT SERVED ON THE ASSESSEE AS REQUIRED U/S 282 OF I.T. ACT. THUS ON FACTS AND IN LAW NON-COMPLIANCE OF SUCH NOTICES DID NOT CONSTITUTE A VALID AND LEGAL GROUND WARRANTING AN ASSESSMENT U/S 144 OF I.T. ACT. 3. THAT THE ASSESSMENT FRAMED U/S 144/148 OF I.T. A CT BEING VOID, ILLEGAL AND WITHOUT JURISDICTION DESERVES TO BE QUASHED. 4. THAT THE DEPOSIT OF RS. 66,00,000/- WAS OUT OF K NOWN SOURCES AND NO PART OF THE DEPOSIT WAS OUT OF UNEXP LAINED SOURCES. THE ADDITION 'OF RS.66,00,000/- AS UNEXPLA INED CASH CREDITS MADE BY THE LD. A.O. AND SUSTAINED BY THE LD. CIT(A) DESERVES TO BE DELETED BEING VOID, ILLEGAL A ND WITHOUT JURISDICTION. 5. THAT THE LEVY OF INTEREST U/S 234A & 234B OF I.T . ACT BEING VOID, ILLEGAL AND WITHOUT JURISDICTION AND AT ANY R ATE VERY EXCESSIVE DESERVES TO BE QUASHED. 2. AT THE OUTSET IT IS NOTICED THAT U/S 148 WAS ISSUED FOR REOPENING THE CASE FOR THE ASSESSMENT YEAR 2009-10, VIDE NOTICE DATED 10.2.2012, WHICH HAS BEEN MENTIONED IN THE ASSESSMENT ORDER THAT IT WAS SERVED. HOWEVER NO COMPLIANCE WAS MADE BY THE AS SESSEE. SIMILARLY VARIOUS OTHER NOTICES U/S 143(2) AND 142(1) WAS ISSUED BUT NO COMPLIANCE WAS MADE BY THE ASSESSEE AND ACCORDING LY, THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS. 66,00,00 0/- ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT. BEFORE T HE LD. CIT (A), ASSESSEE HAD FILED DETAILED SUBMISSIONS ALONGWITH PE TITION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A, WHI CH HAS BEEN REJECTED BY THE LD. CIT (A) AND ENTIRE ADDITIONS HAVE BEEN UPHELD. 3. NOW BEFORE US, THE ASSESSEE HAS CHALLENGED THE VALIDITY OF PROCEEDINGS U/S 148 AND ALSO THE IMPUGNED ASSESSMEN T ORDER ON THE ITA NO. 4060/DEL/2015 RAJ KUMAR VS. ITO 3 GROUND THAT, FIRSTLY, NO NOTICE U/S 148 WAS SERVED UPON THE ASSESSEE NOR ANY NOTICE U/S 143(2) OR 142(1) AS MENTIONED IN T HE ASSESSMENT ORDER; AND SECONDLY, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN REJECTING THE ADDITIONAL EVIDENCE WHICH ASSESSEE HAD F ILED TO SUBSTANTIATE ITS CASE ON MERITS. HOWEVER WE FIND THAT NO SUCH SPECIFIC GROUND HAS BEEN RAISED ON THE LEGAL ISSUES BEFORE TH E LD. CIT (A) EXCEPT FOR STATING THAT ORDER OF THE A.O. WAS BAD IN LAW . BEFORE US THE LD. COUNSEL SUBMITTED THAT THE VALIDITY OF PROCEEDINGS U /S 148 GOES TO THE VERY ROOT OF THE ISSUE, THEREFORE, THE SAID GROUND NEEDS TO BE ADMITTED AND SHOULD BE ADJUDICATED BY THIS TRIBUNAL. A PART FROM THAT HE SUBMITTED THAT LD. CIT (A) WAS NOT JUSTIFIED IN REJECTI NG THE ASSESSEES PETITION FOR ADMISSION OF ADDITIONAL EVIDEN CE, THEREFORE IN THE INTEREST OF JUSTICE, HE SUBMITTED THAT THE ENTIRE MATTER S HOULD BE RESTORED BACK TO THE FILE OF THE A.O. TO DEAL AND DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH THE PROVISION OF LAW. 4. ON THE OTHER HAND LD. DR SUBMITTED THAT THERE IS A NON COMPLIANCE BY THE ASSESSEE BEFORE THE A.O. AND THEREF ORE NOW AT THIS STAGE, ASSESSEE CANNOT CHALLENGE THE VALIDITY OF REOPE NING U/S 148 AND ALSO THESE ISSUES HAVE NOT BEEN RAISED BEFORE THE LD. CIT(A). THUS THE LEGAL GROUNDS RAISED BY THE ASSESSEE SHOULD BE REJE CTED OUT RIGHTLY. ON MERITS HE SUBMITTED THAT MATTER CAN BE RESTORED BACK TO THE FILE OF LD. CIT (A) TO DECIDE AFRESH AND IN ACCORDANCE WITH LAW. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND O N PERUSAL OF THE IMPUGNED ORDER AS WELL AS MATERIAL BEFORE US, WE ARE OF THE OPINION THAT SO FAR AS THE VALIDITY OF REOPENING IS CONCERNED, THE SAME IS PURELY A LEGAL ISSUE AND RAISES A JURISDICTIONAL POINT WHICH CAN BE RAISED AT ANY STAGE. SINCE, THE ASSESSEE HAS NOT CHALLENGED THIS VALIDITY BEFORE THE AO OR BEFORE LD. CIT (A), THEREFORE, WE ARE OF THE OPINION THAT THIS ITA NO. 4060/DEL/2015 RAJ KUMAR VS. ITO 4 MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE AO WH O SHALL DEAL AND DECIDE THE LEGAL ISSUE OF THE VALIDITY OF REOPENING U/S 147 AS WELL AS SERVICE OF NOTICE U/S 148 AND NOTICE U/S 143(2). APA RT FROM THAT SINCE NOTICE COULD NOT BE SERVED UPON THE ASSESSEE, NO REP RESENTATION COULD BE MADE AND THAT IS WHY ASSESSEE FILED ADDITIONAL EVID ENCE BEFORE FIRST APPELLATE AUTHORITY. THUS, IN THE INTEREST OF NATURAL J USTICE, WE FEEL THAT ON MERITS ALSO THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF A.O. WHO SHALL DEAL AND CONSIDER ALL THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND DECIDE THE ISSU E AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF TH E HEARING TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO COMPLY WITH AL L THE NOTICES AND SHOULD ENSURE THAT PROPER REPRESENTATION IS MADE BEFOR E THE A.O., SO THAT PROPER ASSESSMENT OF THE INCOME OF THE ASSESSEE CA N BE FRAMED. ACCORDINGLY, ALL THE ISSUES RAISED IN THE GROUNDS O F APPEAL ARE REMANDED BACK TO THE FILE OF THE A.O. TO BE DECIDED AFR ESH AND IN ACCORDANCE WITH LAW. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH NOVEMBER, 2017. SD/- SD/- (PRASHANT MAHARISHI) ( AMIT SHUKLA) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED: 07/11/2017 VEENA COPY FORWARDED TO ITA NO. 4060/DEL/2015 RAJ KUMAR VS. ITO 5 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI